Grice v. State, 21458.

• Decision Date: 09 April 1941
• Docket Number: No. 21458.,21458.
• Citation: 151 S.W.2d 211
• Parties: GRICE v. STATE.
• Court: Texas Court of Criminal Appeals

151 S.W.2d 211

GRICE v. STATE.

No. 21458.

Court of Criminal Appeals of Texas.

April 9, 1941.

Rehearing Denied May 21, 1941.

Appeal from District Court, Hamilton County; R. B. Cross, Judge.

Newton Grice was convicted of burglary, and he appeals.

Affirmed.

Tom L. Robinson, of Gatesville, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

BEAUCHAMP, Judge.

The appellant was convicted upon an indictment charging burglary, alleged to have been committed in the city of Hamilton on September 15, 1940. The sentence assessed was two years in the penitentiary.

The facts connecting appellant with the offense as produced by the state, so far as it is essential to a discussion of the question before us, may be summarized as follows:

A cafe business was conducted by Huddleston in the house in question. In addition to the regular front entrance there was also an entrance to the building from the rear, through which the public was invited to pass and which entrance was generally patronized. Appellant lived in the town and had been working three or four doors from this place of business in a newspaper office. He was a frequent visitor to the cafe, entering both from the front and rear doors. The evidence shows, without dispute, that the place of business was closed on the night of the burglary and the rear doors were fastened on the inside. One of the doors had three panes of glass which were fastened in place with a molding from one half to three fourths of an inch in width. This molding was removed by the burglar and the glass taken out of the door was placed in a washroom on the inside of the building. The state's theory is that the party making the entry reached in through the opening left by the removal of the glass and unlatched the door and opened it to permit him to enter. A night watchman testified that the door was still closed at one o'clock in the morning. At about 4:30 an employee came to open the business and discovered the door open and that a burglary had been committed. He at once notified the proprietor, who called the watchman and then the sheriff. They discovered the pane of glass and the sheriff took charge of it, handling it so as to prevent destroying any finger prints thereon, and carried it to the Department of Public Safety in Austin, where an examination by experts disclosed a finger print on the glass extending into that portion which was covered by the molding while in place in the door. This was, of necessity, made on the glass at the time of the entry. This finger print was photographed and enlarged and by an expert compared with the known finger print of appellant which had been secured by the sheriff and furnished to the expert. Enlarged photographs, together with the negatives from which they were made, were introduced in evidence and a picture of a section of the known finger print of appellant is herewith shown as our figure No. one: NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE We also show a like section of a picture of the finger print taken from the glass as introduced in evidence as our figure No. two: NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Testifying for the state as an expert, J. O. McGuire discusses the two pictures shown here as figures I and II, showing the points of identity as numbered from (1) to (18), and concludes that the latent impression on the glass was identical with the impression known to be that of appellant. There is no denial that the pictures are identical if properly and correctly taken from the glass, the only contest being an intimation on cross examination that a better method of lifting the prints might be used, or that there could be errors in the print.

The only other evidence than the finger prints which may aid in connecting appellant with the offense was the testimony of an officer that he saw the appellant on the streets in the city of Hamilton during a late hour of the night. He is not shown to have been seen at or about the building burglarized.

Appellant pleaded not guilty and set up the defense of an alibi. His father and another relative testified that they made a trip to Fort Worth, which was inconsistent with his presence in Hamilton at the hour of the burglary. Other witnesses also corroborated these. A number of citizens were called as witnesses and testified as to appellant's good reputation.

We are, therefore, confronted with the problem of deciding for the first time whether or not identification by finger prints, unaided by other evidence, is sufficiently reliable, when believed by a jury, to warrant them in concluding that the accused was present and made the finger prints.

The expert testifying for the state says the finger print found on the glass is identical with that of the appellant, and testified as to the method and reasons for such identification. Whether or not it was made by the accused, and all other deductions to follow from such finding by the jury, are conclusions which rest exclusively with the jury, regardless of any holding as to the admissibility and force of such testimony. Nevertheless, we understand it to be within the rule to permit an expert to say that in his opinion the print could not have been made by any other person.

As noted, the characteristic markings shown in the figures are referred to by the use of arrows numbered from one to eighteen, and the expert testifies that there are eighteen points identical on the two prints, while nothing is found on one different to that found on the other. There is no short line or ridge, no forking of line, no break in the line, and no formation of a ridge found on one that is contradictory of the other. He says that from nine to twelve such identifying characteristics are generally accepted as being sufficient to warrant positive identification, while he has pointed out eighteen. If there is another or others in the vicinity with identical finger prints, it would be easy to conclude that the comparison made would only be a circumstance which may be considered along with other evidence pointing to appellant's guilt. In that event, with the state of this record, we would not feel like holding that the evidence met the requirements of law for circumstantial evidence for there would not be evidence to exclude all others. If there is but one person having this exact finger print, and appellant is shown to be that person, then it may well be reasoned that the evidence points to appellant as the party who entered the building to the exclusion of all others.

In brief, if the state's contention is correct that no two people have the same finger prints, and the court is justified in judicially accepting as a scientific truth such fact, or it is sufficiently proven by the evidence introduced in this case, then the judgment should be affirmed. If not, it must be reversed.

The discussions on this subject in the written opinions, and the recognition which the courts may give it will be given as it appears in the several cases hereinafter treated.

The state's witness said on cross-examination that the number of prints which would be required to find a duplication would be a figure so high that he would have no name for it; that it would be in the "billions and trillions or something". Counsel for appellant, in a very intelligent cross-examination, apparently concedes that a duplication might occur in sixty-four million people. At least, he presented a book whose author so taught. The state's witness would not agree to a figure that small.

We might observe with some force at this time that the question is one capable of ascertainment to a satisfactory degree at least. This is not always true of scientific deductions, many of which must be noticed judicially. For many years cases of this character have been in courts, before legislative bodies, and others interested with the claim that no duplication can be found. In various branches of governmental activities finger prints are taken by the multiplied thousands. They have been assembled, classified and indexed systematically and if there are two alike in the great number of which there is authentic record and available to litigants and others interested in the subject, that fact could be definitely proven and the claims of experts successfully contradicted. So far as we have been able to tell, no such contention has ever been so rebutted, and appellant does not even attempt to do so in this case. The question specifically and definitely before us is whether or not the evidence given is sufficient to establish identity. Appellant contends that it is not, but the record is silent as to any perceptible difference, and rests solely upon the effort to weaken the state's evidence.

While the subject is one for expert testimony, at the same time there is no rule excluding the physical facts pointed out which may be viewed and understood by the layman. The markings and characteristics in the eighteen points relied upon appear to us to be of such nature that they are understood even without the interpretation of an expert. In this connection we may observe that from the authorities we learn that the science of identification by finger prints is as old as the Chinese civilization, but that in recent years there has been great development in its use and usefulness because of modern invention which permits the lifting of the finger print under many conditions; the photographing, magnifying and preservation, and particularly in a satisfactory system of classification. These things have given rise to a more frequent appearance of such testimony in litigated cases and of more carefully considered opinions treating the subject. We must now view it in the light of such decisions.

While appreciating the caution and care exercised by this court in the years that have passed, we must know that in the progress of things opinions early expressed may not be an...